Fan Art & Fair Use

Disclaimer: This is going to be quite a long post. The creation of this article has taken quite some time due to the amount of research involved. Whilst it was initially planned to be as objective as possible, I will be calling out certain practices I believe to be illegitimate. I am not a legal professional and am presenting my limited understanding of the subject matter. I will be presenting both facts and opinions.

An Introduction

Fan art is something that you’ll see on many artists’ Instagrams, Facebook pages and convention stalls. At it’s core, fan art is arguably the ultimate expression of someone’s love and adoration of a particular series, franchise or Intellectual Property (IP). There’s no doubt that fan art can come from a good, well-intentioned, place and be born of love, however it’s also fair to say that fan art can be damaging to an IP holder and there could be legal consequences, especially if the fan art’s being sold.

A common response from the fan art community is that they’re legally protected by Fair Use. I’ll be taking an in-depth look at Fair Use (sometimes referred to as Fair Dealing, Free Use or Fair Practice) to try and determine whether any protection does exist, or whether it’s a widespread misconception amongst the community.

There are many arguments for and against fan art, as well as a number of different approaches employed by various companies to both tackle and support it. The issue stretches across more than comics, covering movies, TV shows and video games to name but a few. In addition to reviewing the law, I’m going to take a look at a few examples and provide my personal opinion.

Fan Art & Bootlegs – Where’s the Line?

Welcome to the first of many subjective sections of this article where I’ll no doubt anger a lot of people by providing my opinions on bootlegs! Bootlegging originally referred to the illegal production, distribution and/or sale of alcohol during prohibition. In modern times, bootlegging’s definition has changed to cover illegal reproductions of pretty much anything. Let’s look at a blatant example.

A Streets of Rage canvas print for sale on Etsy.

PAL box art for Streets of Rage

Above is a canvas print for sale right now on Etsy. The canvas print features artwork taken from the front cover of Streets of Rage, a game released on the Sega Mega Drive. On the right is the cover art for that game for comparison. As you can see, the artwork in this canvas print has been directly lifted from the game’s official artwork. There’s nothing on the seller’s page to indicate that they’re the original artist, in fact they’re selling a number of these prints using a wide variety of video game artwork by different artists and in a plethora of styles. Equally, there’s no indiciation that they have any permissions, licenses or agreements with Sega, the game’s publisher.

At the time of writing and according to public statistics on the Etsy store, this seller, who also sells reproduction and replacement game cases that use official artwork and logos, opened their shop in 2016 and has enjoyed 115 sales. Assuming their shop opened in January (though it could have been at any time in 2016) and because we’re now in October, that averages out at 11.5 sales per month. The items they have for sale range from £8 to £50, so we’ll assume an average sale is £29. That’s £333.50 per month from what’s evidently stolen artwork!

A Spider-Man “digital print” for sale on Etsy

Official character render of Spider-Man, used to promote Disney Infinity 2.0

It’s time to look at something that’s one step removed. Here’s a piece from a different Etsy seller. It’s a digital download of an image you can then print as a poster (yes, there’s no physical item on offer here). The image is an official character render of Spider-Man, as he appears in Disney Infinity2.0, which the artist has applied a paint splatter effect to. This is one of over 300 items offered by this seller, whose public stats reveal they’ve enjoyed 695 sales so far! For comparison, I’ve also included the original image they manipulated.

It might feel like I’m picking on Etsy, I can assure you they’re not alone. There are examples all over the web from websites like TeePublic, BustedTees, RedBubble and Society6 to name just a few.

Finally, we’ll look at something that’s a few more steps removed, but still falls under bootlegging in my mind. Below, we have a Batman print that’s a collage made up of various comic panels. There’s clearly been some effort put into this one, however all of the artwork is lifted directly from actual DC Comics publications and none of the source material is the seller’s own. I’m expecting this one to divide the readership as many will argue that the amount of work required to produce this print qualifies it as a transformative piece. I don’t believe it to be transformative, for reasons I’ll get into later.

Batman print for sale online

In my mind, for something to fall under fan art you have to have created it yourself. You can’t take pre-existing assets, especially not official ones, and call them your own regardless of how you manipulate it.

An Example of Fan Art

Following the section above, and to illustrate my point, I thought it would be a good idea to take a moment and show you an example of what I consider to be fan art.

This is a piece of Sonic the Hedgehog fan art by Deviant Art user SS2Sonic. It’s seemingly been created from scratch and wishes the blue blur a happy 24th birthday, that right there is the expression of love and adoration of an IP. It’s not been slapped on a mug, t-shirt or poster, it’s free to view online, it doesn’t portray Sonic in a way that would damage the brand or the publisher’s reputation. As it stands, this doesn’t do any harm, if anything you could argue it helps Sega by showing how beloved their mascot is.

Now, if the artist were to try and sell prints or put it on a product, or if the image portrayed Sonic in a sexual manner, using drugs or killing someone then they could encounter a number of issues and even find themselves in court! The next section will dig into the legal side of things to see whether the Fair Use argument stands up or not.

The Law

In researching this topic, I read from various sources including, but not limited to:

The first thing that was made apparent to me is that Fair Use, Fair Dealing, Free Use, Fair Practice and all their other names and iterations are defences, they’re not protections or deterrents. By the time you actually use Fair Use the liklihood is you’re already in court being sued and have already incurred the associated costs which come with that. In September 2015, the United States Court of Appeals for the Ninth Circuit ruled that copyright holders must consider Fair Use prior to taking action. This was part of the ‘Dancing Baby’ case and a major victory for the Electronic Frontier Foundation (EFF), however I’ve yet to see any examples of this ruling preventing IP owners from pursuing anyone and, likewise, I’ve not come across any cases where copyright holders have been punished for neglecting to consider Fair Use.

So what does Fair Use cover? Fair Use allows people to use copyright protected material for a number of purposes. These are:

non-commercial research and private study

text and data mining for non-commercial research

criticism, review and reporting current events

teaching

helping disabled people (ie. creating a braille copy of a book that’s otherwise unavailable in braille for a blind person)

time-shifting (ie. recording a TV show that starts at 4pm so you can watch it when you get home from work at 6pm)

parody, caricature and pastiche

permitted use of orphan works.

The one that fan artists commonly claim to fall under are parody, pastiche and caricature. Parody is defined as “a ‘distorted imitation’ of an original work for the purpose of commenting on it”. The Spider-Man image we saw earlier had certainly been distorted, but it doesn’t comment on the original work. It fails to say anything about Spider-Man, the comics industry or video games so it therefore isn’t a parody. It’s also not an imitation in the sense that the seller started with the existing official render and altered it, they’ve not redrawn Spider-Man in a similar style.

Caricature is defined as “a representation or image that exaggerates somebody’s or something’s characteristics for humorous or satirical purposes”. None of the three images we originally looked at fall under this definition.

Finally, pastiche is defined as “an artistic work in a style that imitates that of another work, artist, or period”. Again, none of the images we looked at under bootlegging fall under this category. Additionally, the piece of Sonic fan art also fails all three. Imitating a style and using someone else’s character are two different things, if I wanted to draw my own original characters in the style of Akira Toriyama, creator of Dragon Ball, then that would be considered pastiche. If, however, I wanted to draw Dragon Ball’s main character, Son Goku, that wouldn’t be pastiche regardless of the style (however certain styles may qualify as caricature).

People sometimes use the term “transformative” instead of parody, caricature and pastiche. This often causes confusion as transformative is a looser and broader term, leading people to mistakenly think their steampunk version of Himura Kenshin from Rurouni Kenshin is protected by Fair Use.

Consequences

Dragon Ball shirts advertised on Facebook

Being caught can have a number of outcomes. In many cases, someone will receive a simple cease and desist notice. This is exactly what it sounds like, an order to stop what you’re doing with immediate effect and withdraw the infringing item(s). To give a recent example, video game company Nintendo sent cease and desists to fan projects Pokémon Uranium and Another Metroid 2 Remake (AM2R). These projects were playable games that were being distributed for free online but Nintendo still acted despite there being no money involved.

There are, of course, more dramatic outcomes. Fox recently pursued Zoie Burgher, a “bikini streamer” for her use of a piece of official Zoidberg artwork from the TV show Futurama and for referring to her viewers as “Zoidberg Nation”. Fox stated that Zoie’s use of Zoidberg “creates consumer confusion because users encountering it will assume that Fox sponsors, endorses, or authorizes the use of the Fox IP or the content of your channel, when neither is true”. They’re reportedly asking for $150,000 per copyright infringed, it’s unclear whether this is $150,000 overall, per video or for each time Zoidberg has appeared or been mentioned. Fox have also demanded that all references to Futurama are to be immediately and permanenetly removed from Zoie’s YouTube channel and social media accounts. Various websites report the total cost of the lawsuit to be anything between $1.2 and $1.9 million USD.

If taken to court, there’s little to no guarantee on what the outcome will be due to some of the grey areas surrounding Fair Use. There are typically four main considerations when making a judgement:

purpose and character of the use, including whether the use is of a commercial nature or is for non-profit educational purposes

nature of the copyrighted work

amount and substantiality of the portion used in relation to the copyrighted work as a whole

effect of the use upon the potential market for or value of the copyrighted work.

These four points cause a tremendous amount of heated discussions within creative communities and it’s where the arguments for and against fan works most commonly spring up. To look at Nintendo’s case, the purpose and character is a non-commercial expression of adoration for their IPs and potentially an opportunity for the infringing party to learn and practice games design techniques. I’ll chalk that point up as a loss for Nintendo.

The nature of the copyrighted work is a commercial video game, Metroid and Pokémon weren’t created to encourage self-expression, interpretations or derivatives. That’s a win for Nintendo.

The amount and substantiality is a tricky one. Pokémon Uranium uses new monsters, new areas and a new plot that gives it a plethora of original content. The gameplay, interactivity and user interface, on the other hand, is more-or-less identical to the original games. You’d think AM2R would be a little more clear cut, it is as the name implies a remake of an existing title. It does make several changes to both the graphics and gameplay to provides a slightly different experience though. What AM2R can’t avoid is that Samus is undisputably Samus, Ridley is Ridley and the Metroids are Metroids, all Nintendo’s property. While I get the feeling Pokémon Uranium might have gotten away with it had it launched with a different name and entirely original assets, I’m going to give the point to Nintendo again.

Finally, the point I feel will be most hotly contested, the effect of the use upon the market value of the original. It’s true that these games were distributed for free, yet that doesn’t mean Nintendo can’t argue a financial loss. While free versions of Metroid and Pokémon are available there’s arguably less need for someone to go out and buy the paid versions. They can scratch that itch, so to speak. A counter argument would be that these fan games may have introduced people to these franchises or helped raise the awareness and profile of these IPs to encourage sales of the original. A personal friend of mine did purchase Metroid 2 from the 3DS’s Virtual Console immediately after playing AM2R and he attributes that purchase to his great experience with the remake. In this case, the fan games were of high quality but if they hadn’t been then there’s a chance that players could subconciously hold onto that bad experience when looking at official versions of the games. The bad experience might not have been Nintendo’s fault but it can still taint someone’s perception of their IP.

Let’s imagine you buy an unlicensed mug that features a Disney character from an artist at a convention, that mug breaks and although Disney had nothing to do with it you still associate that product with Disney due to the unauthorised use of their characters and, whether you consciously realise it or not, start to question the quality of legitimate Disney products. This ability to taint IPs with negative perceptions is the main reason Blizzard Entertainment were so quick to issue takedown notices against pornography featuring Overwatch characters. Honestly, in Nintendo’s case, I think the point could go over way depending on who’s making the final decision.

Supported Fan Art & Implied Consent

Not every company is against fan art, some actively support the creation of it, others go as far as giving their blessing for it to be sold under certain conditions. When Nintendo sent cease and desists to Pokémon Uranium and AM2R, Sega actively encouraged the creation of fan games via it’s official Sonic the Hedgehog YouTube account. On a video showcasing fan game Green Hill Paradise Act 2 they wrote “BRB, DMCA time. Just kidding. Keep making great stuff, Sonic fans.” with DMCA referring to the Digital Millennium Copyright Act.

The Sonic the Hedgehog YouTube channel encourages fan works

Sega went even further when they hired Christian Whitehead, famous online for his Sonic the Hedgehog fan games, to create the mobile ports of Sonics 1, 2 and CD – all regarded as the best versions of their respective games. Whitehead is currently working on a brand new title for the company, Sonic Mania.

The Dragon Ball Super manga is currently being drawn by an artist known as Toyotaro. The artist was supposedly hand picked by Akira Toriyama, the original artist for the series, and many believe Toyotaro is a pseudonym of Toyble, a fan artist who released his own fan comic (or dōjinshi) titled Dragon Ball AF. Instead of taking legal action against him, they decided to bring him aboard and I’m told this is actually fairly common in Japan. In fact, Comiket (short for Comic Market) is a bi-annual event held in Tokyo with a significant dōjinshi presence that attracts as many as 520,000 attendees!

Another example would be Comic Party: Party Time!, Comic Party: Another Round and Comic Party: Last Call. These are spin off anthologies based around the Comic Party manga series that feature collections of short stories from dōjinshi artists!

There are companies all over the world who actively encourage fan works because they see fan artists as the next wave of professional talent. They can nurture that talent and, when it reaches a professional level, offer them a job. Of course, not all companies are so keen to do this due to implied consent, sometimes referred to as implied license or implied permissions.

As I understand it, the two main strands are:

the copyright owner or one of their representatives praises a fan work

the copyright owner or one of their representatives is made aware of an infringement and chooses not to act.

In either case, were the copyright owner to later take a separate infringement to court, they could use implied consent as a defence, stating that their previous actions (or rather, inaction) gave a message to the rest of the world that it’s okay to use their IP. This explains why copyright owners rarely speak about infringements unless they’re announcing a takedown, to state they’re aware of an infringement and then either praise it or allow it to continue would open the flood gates.

Other Arguments in Favour of Fan Art

A t-shirt combining Pokémon and Naruto

There are many other arguments in favour of fan works, the biggest being that fans often provide items the copyright owner hasn’t. This often holds true in the cosplay community, where people will make and sell cowls from Batman: Arkham Asylum, weapons from Sword Art Online or wigs styled after Naruto characters. In comics, it may be a sequel to a series that’s been neglected or a tale focusing on an underused character. In video games, it may be a reimagining and modernisation of a beloved but dormant classic.

Then there are mash ups, like this t-shirt that combines Pokémon and Naruto. The IP holders are unlikely to collaborate and make this themselves so fan artists feel they’re plugging a gap. Oddly enough, these seem to be safe for the moment, not because of Fair Use but because when multiple copyrights are infringed upon the copyright owners tend to disagree on who can pursue the infringement and how any costs involved and monies gained should be split.

Sakimi Chan creates images of genderswapped and nude characters. Her Patreon is currently at $28,251 per image! People liken it to indie games, where developers are creating games for genres AAA developers won’t touch anymore and hoovering up the loose change they’re ignoring. There’s a real “if they won’t, we will” proactive and energetic atmosphere that almost has to be admired.

There also appears to be a sense of low risk, high reward. Lots of people are making lots of money through fan art and you never hear of anyone facing penalties for it. It’s like driving on a motorway, the speed limit’s 70mph, you’re doing 80mph, but plenty of other people are doing 90mph. You’re still speeding but so’s everyone else and your chances of getting pulled over are relatively slim. Of course, that fact that everyone else is doing it doesn’t make it okay.

The Argument Against Fan Art

I used to sell fan art prints at conventions until a fellow artist, Matt Dyson-Bird, asked me how I’d feel if I saw people selling prints and merchandise based on my original characters and properties. I suddenly understood the other side of the coin. It’s weird, people largely respected the “no selling Undertale fan items” (until that changed to “don’t sell anything that directly competes with official mechandise”) because Undertale was seen to be a small, underdog, indie game that needed people’s money despite it’s massive commercial success. These same people would then sell fan made Marvel prints and merchandise because “it won’t hurt them anyway” and “Disney has enough money”. The two sets of rules feel like a contradiction and I really have to wonder where you draw the line.

When I sold fan art it was easily the biggest seller at my table, at the expense of my original comics and prints which hardly moved. I noticed it felt far more satisfying for me, individually, when I sold original work versus the limited buzz I got from selling fan art. If you’re selling an Iron Man print you have to question whether they’re buying it because they like your art or whether they’re buying it because they recognise it. For those reasons, I stopped selling fan art, the sales of my original work increased dramatically the second there was no fan art on the table and I felt far more satisfied. I’m also gaining fans who are fans of my work and want to see more from me, whereas someone who bought a Batman print might never return.

There’s also the legal side, yes, people are getting away with it left, right and centre but that doesn’t mean I’m safe. I’m a parent, if I catch my daughter with her hand in the cookie jar and she points out her brother’s doing exactly the same thing, I don’t let her off the hook. I expect her to know better. If I sold fan art knowing the legal and moral issues surrounding it, I’d be a hypocrite everytime I had to tell her off for something.

Obviously, that’s a personal decision on my part and I wouldn’t force that decision upon anyone else. What I have done, or at least what I sincerely hope I’ve done, is presented several facts and sources, sprinkled with a healthy dose of my personal opinion, so that your choice can be an informed decision.